Broadstreet v. Broadstreet

DocGroupNo:

1771–1774

Docno: ADMS-05-01-02-0007-0001-0001

Editorial Note

At twenty-four Adams could ask, “But Quere, if Dissonance of Dispositions is a sufficient
Reason [for allowing a divorce]? This may be known, if sufficient Caution is taken beforehand.”1 Some twelve years later as counsel for Abigail Broadstreet in a divorce case involving
domestic discord of the type dear to the readers of women's magazines today, he may
well have had cause to ponder this proposition again.

Abigail Fuller had married Dr. Joseph Broadstreet of Topsfield in February 1770. Although
Abigail had recently bought a small farm in nearby Middleton, the town in which her
family lived, the couple, apparently for financial reasons, chose to move in with
her brother Jacob. Within a few months Broadstreet became extremely restive, proclaiming
to all who cared to hear that he had made a poor choice of wife in marrying a woman
with no fortune but some unprofitable real estate. He said that “he was a damned fool
for having of her and that he should rather have married a Negro if She had money.”2 Such pronouncements were accompanied by frequent threats to sell all that Abigail
had and to depart with the proceeds to a more desirable location.

By the fall of 1770 Abigail was well along with child. Her mother, hearing that Broadstreet
was “very uneasy” with his wife and still threatening to leave her, summoned him to
the matriarchal presence. There followed a stormy scene in which she tried to persuade
her son-in-law to stay with his wife “in her difficult circumstances, she being very
unwell and unfit to care for herself.” Pleas and offers of assistance were of no avail.
All that Broadstreet would say was “that he was a fool for having her and that he
would not tarry with her for he had much rather be in the Mines.”3

Perhaps in reaction to this interview, Broadstreet then left home. He soon returned,
however, and, repenting past excesses and promising future good behavior, persuaded
Abigail to move with him into her own house, about half a mile distant. Almost at
once he began to threaten abandonment again. According to Abigail's sister Mehitabel,
who helped her to move, “He appeared very ill-natured, cursed his wife and cursed
himself { 281 } and behaved like a man in distraction, wishing that he was in Salem Gaol or in the
Spanish Mines, or in the worst place in the world other than there, and screaming
and hallowing and slapping his hands together.”4 There were moments of respite, but on the whole Broadstreet's unsettled and unsettling
conduct worsened during the next two weeks. He would waken Abigail in the middle of
the night, ranting of money or screaming that the devil was coming, so that periodically
she was forced to take refuge with her mother, who also lived nearby, just to get
a night's sleep. Finally, early in December, Broadstreet departed once more, taking
his possessions and vowing never to see his wife again.

After waiting a few days for her husband's return, Abigail took up permanent residence
at her mother's in order to obtain the bare necessities of existence. Here, Broadstreet,
accompanied by friends who sought to reunite the couple, visited her on several occasions.
In these interviews she conceded that he had not harmed her, other than by his nocturnal
out-bursts and perhaps a certain overinsistence on his connubial prerogatives. She
remained adamant in her refusal to rejoin him, however, at least until winter and
her pregnancy had run their courses, for she feared that an irremediable lack of funds
sufficient to maintain Broadstreet in his desired style would quickly reawaken all
the old dissatisfaction and lead to a resumption of his rantings. Without some security
for his good behavior, which was not forthcoming, she “durst not [return], for he behaved like a madman and ... he would infallibly be the death of her: not
in laying violent hands upon her, but by worrying and frighting her and hindering
her from sleep.”5

On several occasions Abigail agreed to go to some other location, away from her family,
which Broadstreet saw as the evil influence upon her. His efforts to find a place
for them to live were inconclusive, however, and each meeting seemed to end on a similar
note. Broadstreet would formally invite his wife to come and live with him again,
but in the same breath aver that he did not care if she ever did. In March 1771 Abigail's
child was born. Thereafter, her husband grew increasingly embittered. In calmer moments
he blamed the separation on family influence, but more and more frequently he stated
that he wished wife and child were dead and expressed his seeming hatred of them in
a series of drastic epithets. It was reported that in February he had rented Abigail's
house, sold off her hay, and “advertised” her—that is, publicly disclaimed responsibility
for her debts.

As her strength returned, Abigail sought a divorce in a proceeding before the Governor
and Council, who had jurisdiction of such questions under a Province Act of 1692.6 In England, questions of divorce were within the competence of the ecclesiastical
courts, which applied the canon law. These courts could decree an absolute divorce,
a vinculo matrimonii (from the bonds of matrimony), only when the marriage itself { 282 } was a nullity because of such defects as consanguinity or impotence. In such a case
the parties were free to remarry. When the grounds were adultery, cruelty, or the
like, the marriage itself was held valid and unbreakable, and the ecclesiastical courts
would grant a divorce a mensa et thoro (from bed and board). This was in effect only a decree of separation and maintenance,
each party being barred from remarriage during the other's lifetime. If the aggrieved
party in a divorce a mensa wished further relief, he or she might, at least in a case where the grounds had
been adultery, apply to the House of Lords, which would, upon appropriate investigation,
order the marriage dissolved, permitting remarriage.7

In Massachusetts, because of the power of the Governor and Council, the location of
jurisdiction to grant divorces a vinculo was ambiguous. The Court of Assistants in the old Colony seems to have granted this
relief in cases of desertion, bigamy, and adultery, acting in its judicial capacity;8 but after 1692 the Governor and Council did not follow suit. From 1755 to 1757 the
General Court took to itself the powers of the House of Lords, granting divorces a vinculo in cases in which the Governor and Council had previously granted decrees a mensa9 It was perhaps in response to these proceedings that Governor Pownall in a 1760 message
to the Council raised the question whether that body had jurisdiction of divorces
a vinculo as a civil, rather than a spiritual, court under the Province Act of 1692. “If not,”
the Governor continued, “the Doubt then remains whether this Power lies with the Legislature
of this Province or only with the Parliament of Great Brittain.”10 The Board of Trade had referred this question of legislative power to the Privy Council,
but, although hearings were scheduled in 1759, none of the private acts granting divorces
seems to have been disallowed.11 Perhaps through Pownall's influence, however, the General Court granted no further
divorces, and the Divorce Records of the Governor and Council show that the latter
body thereafter issued numerous decrees a vinculo in cases of adultery.12 The relief which in { 283 } England could be had only by the petitioner who could afford to go to the House of
Lords, was thus available in Massachusetts in the ordinary course.

Abigail's libel, filed by Jonathan Sewall in July 1771, alleged Broad-street's departure
in December of the preceding year, his failure to support his wife since that time,
and his constantly expressed threats to her fortune and wishes for her death. It concluded
with a prayer “that by your Excellency's and Honors' Decree she may be divorced from
Bed and Board with the said Joseph and thereby be intitled to the separate and sole
use and improvement of her own Estate for the maintenance of herself and Child.” Broadstreet's
answer, propounded by Josiah Quincy Jr., denied Abigail's allegations and attributed
the separation to the efforts of “dark and mercenary Enemies to his household,” who
by “insinuating arts withdrew the affections of his Wife.” Two justices of the peace
were assigned to take testimony for both sides, and on 17 October, before the Governor
and Council, the depositions were read and the parties heard.13

Adams' notes of the proceedings, printed below, indicate that he argued Abigail's
case, probably with Sewall. The authorities which he collected show that the canon
law, as applied in the ecclesiastical courts in England, was an important source of
the Massachusetts law of divorce. He thus limited himself to questions concerning
the divorce a mensa as the canon law defined it, seeking to establish that desertion and cruelty were
grounds, and were present in this case.

Under canon law the husband could be required to pay alimony after a divorce from
bed and board, the theory being that, since the marriage still existed, he was merely
continuing to perform the duty of support which he would have had in normal course.
Since the wife by her conduct could forfeit alimony, Adams also endeavored to lay
the groundwork for an argument that Abigail had not done so in this case, despite
her coolness toward Broadstreet's attempts at reconciliation. The arguments were apparently
successful on all counts, for with the sole dissent of Governor Hutchinson, who did
not agree “that there was a sufficient cause for a separation,” the Council decreed
a divorce from bed and board. Abigail was awarded alimony of £25 per year, payable
in quarterly installments, plus the costs of the proceedings.14

That the separation which Abigail sought ensued seems clear. What is less clear is
her success in obtaining alimony. In 1774 she was forced to { 284 } petition the Council again, because Broadstreet had paid her nothing. In accordance
with the statutory procedure for the enforcement of its decrees, the Council ordered
a warrant to issue for Broadstreet's arrest.15 He could be held in prison until he chose to comply. Whether he was actually taken,
and whether the pains of incarceration eventually triumphed over his enmity toward
Abigail do not appear in the record.

12. See, for example, No. 23. There were at least thirty-five divorce proceedings in Massachusetts between 1760
and 1775, of which twenty were decrees a vinculo for adultery; five were annulments for prior marriages; and seven were divorces from
bed and board for cruelty and the like; in at least two cases a decree was denied
for insufficient evidence. Divorce Recs. In the latter category was Shank v. Shank (1772), in which a divorce a vinculo sought for adultery was denied on evidentiary grounds. The libel in the file is in
JA's hand. SF 129766. The first Massachusetts Divorce Act after the Revolution empowered the Supreme
Judicial Court to grant divorces a vinculo, not only on the traditional canon-law grounds, but for bigamy and adultery as well,
thus adopting what seems to have been the pre-Revolutionary practice. The court could
also decree divorce a mensa for extreme cruelty. Mass. Acts 1785, c. 64, §3 (1786).

13. Divorce Recs., fols. 68–70. See the libel and answer in SF 129762. The Commission to Andrew Oliver Jr, and William Brown, dated 12 Sept. 1771,
and a deposition of Daniel Bixby, 5 Oct. 1771, are in MHi:Photostats; for other depositions, see notes 2–52, 3, 4, and 5 above; note 2712 below.

Governor and Council, Boston, 17 October 1771

Abigail Broadstreet vs. Joseph Broadstreet

“Wife libelled Husband in the Ecclesiastical Court for Alimony because he beat her
so as she could not live with him. A Prohibition was prayed, but denied by the Court;
and it was held in this Case, that the Wife might have the Peace vs. her Husband for
unreasonable Correction.” Sir Thos. Simmonds Case. Mores Rep.3

3. This notation appears in the margin in Godolphin, Repertorium Canonicum 507, cited in note 172 above. JA's quote from Godolphin is in turn an almost verbatim borrowing by Godolphin of the
report of “Sir Tho. Simonds Case” in An Exact Abridgment in English of the Cases Reported by Sr. Francis More Kt. 263 (London, ed. Hughes, 1665). The original report of the case is found sub nom. Sir Tho. Seymours Case, in Moore K.B. 874, 72 Eng. Rep. 966 (K.B. undated).

4. That is, Godolphin, Repertorium Canonicum 508. The definitions are “Alimony .... that proportion of the Husbands Estate, which the Wife sues in the Ecclesiastical
Court, to have allowed her for present subsistence and livelyhood, according to Law,
upon any such separation from her Husband, as is not caused by her own elopement or Adultery.... Elopement ... that voluntary departure of a Wife from her Husband to live with an Adulterer.”

5. Godolphin, Repertorium Canonicum 509. A qualification of the passage in note 4note 19 above, to the effect that, although in most cases of separation not occasioned by
elopement, adultery, or a legal impediment to marriage, the husband is held to pay
alimony, he need not pay if the wife departs of her own accord through no default
of his, even where she is not chargeable with adultery. When the reason of her departure
is some default in the husband, such as cruelty, she is then entitled to alimony,
if she is blameless. If the wife repents of any flight save elopement, adultery, or
a legal impediment, the husband must take her back or pay alimony. Conversely, where
a blameless wife has fled, if the husband repents and offers security that will assure
his good behavior, he need not pay alimony if his wife then refuses to return.

6. Godolphin, Repertorium Canonicum 510, setting out John Owen's Case, Hetley 69, 124 Eng. Rep. 349 (C.P. undated) (Prohibition granted to the Council of the Marches of Wales, which had seized
Owen and sequestered his property for non-payment of a decree of maintenance made
in a case where the husband was living apart by the Bishop of Bangor and confirmed
in the Council. Semble, the only remedy for disobedience of an ecclesiastical decree is excommunication).
This case and the following one were apparently cited by JA as examples of the action of the Ecclesiastical Courts, rather than for the precise
holdings on the prohibitions.

7. Godolphin, Repertorium Canonicum 511–512, setting out Cloborn v. Cloborn (cited incorrectly as Clobery v. Clobery),
Hetley 149, 124 Eng. Rep. 414 (C.P. 1631) (Prohibition to the Ecclesiastical Court refused in award of alimony for cruelty
including physical violence and insults, where the husband had merely denied the allegations.
His grounds for the prohibition were that he had chastised his wife for reasonable
cause and that there had been a subsequent reconciliation. The court held that it
could not “examine what is cruelty,” and that moreover the actions here were cruelty.
If the husband had pleaded some justification and it had been refused, then the prohibition
might lie).

8. Acts and Laws, Of His Majesty's Province of the Massachusetts Bay in New-England 59–60 (Boston, 1759); Act of 19 June 1695, c. 2, 1 A&R 208. Section 3 provides in part that “it shall be in the power of the justices of
the superiour court of judicature to assign unto any women so separated [i.e. divorced or marriage annulled] such reasonable part of the estate of her late husband
as in their discretion the circumstances of the estate may admit, not exceeding one-third
part thereof.” Id. at 209. For a case of JA's illustrating the operation of the statute, see the petition of Sarah Griffin (Gould),
SF 91716; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47. This arose from Gould v. Gould, SF 129772; Divorce Recs., fols. 78–79.

9. Acts and Laws 371–372 (1759); Act of Jan. 1755, c. 15, 3 A&R 782. The Act provides that upon refusal or neglect of any person to obey the decree
of Governor and Council in a controversy concerning marriage and divorce, the secretary
of the Province, upon their order, may issue a warrant for the arrest and commitment
to prison of that person without bail until he complies with the decree.

11. Wood, New Institute of the Civil Law 124, a passage setting forth the grounds of divorce under the civil law, which include
irreconcilable hatred, intolerable cruelty, and “when one party shall unjustly forsake
and live apart from the other. ”Wood then states that the law of England, following
the canon law, will not permit divorce from the bonds of matrimony, but does not raise
the question of divorce from bed and board.

12. That is, evidence presented on behalf of Dr. Broadstreet. See note 13 above. See the depositions of Joshua Wilkins, Enos Knight, and Jonathan Town in SF 129762. Wilkins testified that the hay sold by Broadstreet was not actually Abigail's.
The other two depositions describe the Jan. 1771 meetings between the parties in terms
favorable to Broadstreet.